It is important to understand what civil marriage laws are. They are enactments authorizing the grant of special state benefits for certain kinds of unions. In other words, they give to people in qualifying relationships what the Framers called “privileges and immunities”—an 18th century legal phrase that refers to benefits bestowed by government on some people to the exclusion of others.American governments traditionally have conceded the “privileges and immunities” of civil marriage only to a social union complying with certain exacting requirements. With some variations, state laws traditionally require that the union be (1) of a man and a woman, (2) who undergo certain procedures in advance, (3) obtain a valid license, (4) have consented, (5) are above a certain age, (6) are not married to any one else, (7) are not too closely related to each other, and (8) meet certain other requirements of ceremony and/or cohabitation. States traditionally have excluded from special benefits all other groupings—including, but not limited to, same-sex marriages, polygamous marriages, polyandric marriages, other plural clusters, designated intra-family unions (e.g., brother/sister and uncle/niece), and unions that are unlicensed or that otherwise fail to meet the states’ rules.

Now we come to the big question: Does a state’s decision to grant benefits to just one sort of union violate the equal protection doctrine? A grant of special privileges to one group while excluding others does violate that doctrine unless the state can point to legitimate public reasons for its decision. How strong the reasons have to be depends on the kind of case. For better or worse, the Supreme Court is very tolerant of government discrimination among economic classes. In social-issue cases, on the other hand, the Court sets more exacting standards.

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It is clear that for constitutional purposes civil marriage laws that include one man/one woman unions do meet those exacting standards. This is because of the overwhelming evidence of social benefit deriving from such unions. This evidence arises both from formal empirical studies and from practical experience gathered, quite literally, over millennia.

Thus, under existing Supreme Court Equal Protection doctrine, the real issue is not whether the evidence is sufficient to compel states to recognize same-sex marriage. The real issue is whether that evidence is sufficient to justify states granting to same-sex couples “privileges and immunities” that most other groupings—such as polygamous and polyandrous unions—do not receive.

My own view, for what it is worth, is that such questions are best left to the individual states to resolve. That doesn’t address the special problems arising under the federal Defense of Marriage Act, but it’s a good general principle.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.

Their also the laws that show us that theses specimens tend not to pass on their error.

You might have just as well pointed out the fact that there exist examples in every generation of every species of animals that get themselves killed. I don’t see how we as a civilization have a vested interest in encouraging this self-destructive behavioral.

Frankly holding people to that self-destructive behavioral by imposing an ‘excursive’ union within it is not only cruel to the members of said union is a wast of our social & economic resources for nothing.(no children).

@RossWilliams
The laws of nature show that self-destructive errors arise in every generation of every species.. People like me and jeanJacquesBurlamaqui don’t traditionally refer to theses self-distributive errors as natural. Instead we reconize them for what they are, errors that ultimately kill the poor individual either directly or by inhibiting thier reproduction.

Indeed we call them unnatural because we feel it is morally obligatory to attempt to rectify said errors if we can to save the individual.

historic attitudes shrouding homosexuality & the practice of sodomy are all natural outgrowths of a cultures need to help compensate and prohibit the expression of these errors among its members.

We think it’s sad and cruel that you choose to embrace theses crippling errors in these poor souls rather than attempt to help them correct it. This is really no different than to encourage a man’s heavy drinking habit. Sure he might enjoy it it might even give him great pleasure but in reality it’s also destroying his life. This is what you’re doing to people who suffer from the diseases of homosexuality. It’s a cruel practice, to encourage someone as they slowly kill themselves(biologically) but you may have noticed that neither of us are getting on your case about it.

Gay people please think about what you are asking It cost my husband $25 for the marriage license. It cost me $400 for the divorce. If the feds say gay marriage is legal all over some of you shacking up may find yourself married without knowing it since as in my state common law marriage is still legal in many states in the union. Then you will be married for free but you will need to spend the $400 for the divorce. If you aren’t sure the new spouse may find an old roommate claiming a share of everything you own. Just a few thought from our side of the legal fence.

Government should only be involved in unions I dont care if its gay or straight. The ONLY reason government is involved at all is because its a legal contract between consenting adults. Marriage is and always has been a CHUCH issue. Get government out of marriage altogether and everyone in the governments eyes are CIVIL UNIONS. The CHURCH does marriage.

I agree with Joe Tittiger, Marriage is not a legal issue at all – establishing a legal partnership (same as a business) is. The Government is a legal entity – positively not a moral entity if you watch any news. The churches are where marriage was established and should continue to manage that. Having the Government only manage the legal aspect of a partnership would also have the benefit of having partners lay the ground rules prior to becoming partners which “should” simplify dissolution of the partnership if required reducing the cost of government to the people.

Why are you reprinting an article by a bozo who is desperate to dilute the 10thAM?
The US Constitution was not written to promote biological imperative; biological imperative can take care of itself. “Evidence from empirical studies … gathered over millenia” is beside the point of the Constitution, and any “constitutional scholar” who would sink so low as to use that as an excuse to disqualify certain people doing certain things from their use of the 10thAM is a “constitutional scholar” in the same way that Stalin, or Pol Pot, or Idi Amin were constitutional scholars.
The US Constitution was written to limit the POLITICAL imperative of such people and their vacuous rationalizations.
This grasping political imperative is the only thing that interferes with liberty.

The Constitution wasn’t written to promote the making of hens … or eggs; it was written to prohibit people with personal axes to grind from telling others what they had to do, what they must never do, and why they must behave that way.
Y’know … being a tyrant.
Kinda like what you’re doing by worrying about whether or not roosters can make eggs and suggesting that because they can’t roosters should not be allowed to roost.

Tom, are you an imbecile in real life? or do you just play one on the internet?
Not recognizing gay marriage violates Equal Protection when the states recognizes ANY marriage. That’s what “equal protection” means. Now, if you were to have said that the state is not required to recognize ANY marriage … and both straights and gays could BOTH be outta luck … then you’d have been right.
But as it is, you aren’t; you’re just another peabrain attempting to rationalize his particular manner of telling others how they have to live.
Dale: a several points.
1] sodomy is more than anal sex; it is also oral.
2] heterosexuals engage in oral and anal sex every bit as much as homosexuals do
3] if you are going to limit the definition of sodomy to anal sex only, then you are backhandedly supporting lesbian sexuality – for they don’t have the equipment [unless they buy it at the store] to engage in anal sex.
4] we are not a democracy, desperate as you are to describe us that way; the “will of the voters” has no more authority to violate an individual’s rights as does an act of Congress or a state legislature. …unless you’re now going to claim that the majority gets to vote for laws that obliterate gun ownership …

No it wasn’t. It was written with the ALLOWANCE for that religion in mind … and all others as well. But it was written for the purpose of limiting what a government could compel it’s people to be or to do.

I would beg to differ. The boy’s “understanding” of the Constitution does not appear to be any greater than Barry Hussein’s. He uses disingenuous rationalization to prop up his particular bias every bit as much as our noted Constitutional Law Professor prez.
It’s dishonest for him to claim himself a constitutionalist.

Marriage is not the place of the FEDERAL government to define; the states can address it if they wish – the 10thAM applies to them as well.
But the states are required to allow all marriages if they allow any; and the feds have the constitutional authority to review those states’ laws to make sure they play fair: either all, or none.

In striking down the voters of CA upholding title 8 the 9th Circuit Court of Appeal logic states “if it’s not the same, it’s not equal”. Meaning that even though all the same rights and priveleges guaranteed in a Civil Union as in a traditional marriage it is still “NOT EQUAL” if the relationship is not called “marriage”. This means the institution of “marriage” as legally defined and religiously understood as solely being between a man & a woman no longer is valid. It changes the intent of the CONTRACT from being about a union of “husband & wife” with the ability to procreate to two people of the same sex “he & he” or “she & she” with no NATURAL ability to procreate. Making this change in what defines a “Marriage” DOES come at the expense of heterosexuals. It’s not about Rights; it’s about an attack on Marriage just like “no fault” divorce has been destructive to marriage. It used to be a life long committment to another person, i.e. “until death do us part”. Do you GET IT yet?

Your corrupt notion of precedent is indistinguishable from “cast in stone tradition” … which is what our Constitution was written to dispell.
Political tradition would have held that the tyrant du jour could define whatever he wanted to define, impose it on whomever he chose to, and no one would have any say in the matter.
Is that SERIOUSLY what you want to revert to?

This is as vacuous as saying “marriage is a Babylonian issue” – it was defined by them, as well.
The point is that we, in the United States, are defined to be a politically evolved group of people who are not compelled to obey any preconceived notions of what we should properly be allowed to do, to be, to say, to think, … It doesn’t matter what the bible, or the Bablyonians, had to say about the subject.
It only matters what authority the government was given to impose itself on us; all else is OUR choice.

What happens, Jeremy, when your state issues a marriage license to a male/female couple but not the male/male couple in line right behind them?
…and the state courts see nothing wrong with that because their Constitution defines marriage as requiring one of each sex?
Do you want the feds involved at that point? to impose the 14thAM on your state so that your state is required, as a matter of state protocol, to protect your US Constitutional rights?
This is what I find so vacuous about the other group of this subject’s typical discussants: they have this airy-fairy notion that simply because a matter is not federally DEFINABLE that the feds have no business AT ALL in the matter. …that somehow, magically, all states will fall all over themselves in a rush to protect everyone’s Constitutional rights.
You see how that’s working now in Connecticut … and New York … and Colorado … [etc] with gun bans. You see how it’s working right now in Arkansas and a few other places with abortion laws.
Get it through your heads, folks: bringing the issue closer to home be leaving it up to the state is no more a guarantee that your liberty will survive than by having Mommy Fed define the subject. The federal courts have a proper place in ALL matters, if only to declare that states have no more authority to violate your rights than the feds do.

Shannon, while I may find much in your commentary here to side with – particularly if it were written better – I must remind you that no one here, no one alive today, “came to this country and killed your ancestors”.
And even if you are speaking metaphorically, in some sort of pretentious “past as present tense”, there is no people anywhere on the planet which does not have that same condition to complain about: someone coming in and killing their ancestors. For me, it was the Norse, and Angles, and Saxons, and Franks, and Lombardies, and [and … and…]
For others it was the Moors and the Turks and the Mongols and the Swedes.
You aren’t any more special in that regard than anyone else.

The problem, Nancy, lies in the fact that we would have to pay thousands in legal fees just to get the same basic protections on our relationships as that $25 license got for you and your husband. Then, when you add in the State and Federal benefits granted to married couples (tax breaks, inheritance rights, spousal power of attorney, etc), you begin to see how inequitable the situation is; there are more than 1,000 state and federal benefits that hetero couples get, as a matter of course, but which are denied to gay couples. The fact is, the government and the religious right are screwing us nastier than anything you think we’re doing to each other.

I will never recognize same sex marriages. It’s against my religion which is a higher power than any worldly power. I, however, will recognize, without any reservation, domestic partnership or civil union. I refuse to be put into any class that has the same definition as being gay. GOD RULES, others will go to hell. PERIOD

[[In striking down the voters of CA upholding title 8 … ]]
You mean PROP 8.
I apparently have to remind you that the majority does not possess the authority in this country to vote certain people into the closet any more than they did to the back of the bus. We are not a democracy; we are a constitutional democratic republic, and you would do well, if you’re going to respond to me any further, by learning what the hell it means.
When our laws insist on making distinctions between “civil unions” and “marriage” then it is NOT equal – by definition.
I apparently have to remind you that the purpose of our Constitution, and the form that it requires our nation’s various governments to take, is to
1] limit the power of the government to push its people around, and
2] treat everyone the same while they do it.
A “civil union” is getting married by a justus o’ da peace down at the courthouse, and when that justus officiates a “civil union” between a man and a woman, no one, ABSOLUTLEY NO ONE, has an issue with saying “these people are married”. That civily joined couple enjoys the same privileges and immunites as does the couple with the expensive church wedding. …and no one has an issue with it.
To MAKE an issue is to disobey our nation’s political requirement of treating people the same.
Why are you doing your level best to advertise that it is acceptable to treat ANYone in this country differently from anyone else? I dearly hope you don’t expect me to be polite to you over it.
[[the institution of “marriage” as legally defined and religiously understood as solely being between a man & a woman no longer is valid]]
So what?
If it is “legally defined” to treat people differently then it is not constitutionally supportable, and therefore legally void.
Religious “understanding” of the matter has less than no bearing on it: we are not a theocracy. We are a constitutional democratic republic.
[[ It changes the intent of the CONTRACT from being about a union of “husband & wife” with the ability to procreate ]]
A contract is an individual arrangement; if YOUR contract is affected by Ellen Degeneres’s contract, then your contract was written poorly and you should probably sue the loyyer who did your paperwork.
And I apparently have to remind you that procreation is thoroughly irrelevant to the matter.
[[Making this change in what defines a “Marriage” DOES come at the expense of heterosexuals]]
Repeating baseless assertions only makes you incorrect multiple times. We are a nation of rights and liberty, not just for you and those who act and think like you, but for everyone. If others are exercising their freedoms it pretty much guarantees that you will be pissed off, just as when you exercise your rights you will piss off a great many of those around YOU as well.
This is freedom.
[[Do you GET IT yet?]]
What I get, boy, is that you are a petty and childish tyrant desperate to deny certain people their rights based upon some cockamamie and irrelevant rationalization that makes you perfectly happy.

“This is because of the overwhelming evidence of social benefit deriving from such unions. This evidence arises both from formal empirical studies and from practical experience gathered, quite literally, over millennia.” – I can see the point of State vs Federal jurisdiction, however this statement leaves a lot of room for debate. Consider the historical legality of interracial marriages and the implication of this arguement 50 years ago.

Ain’t just the “religious right” Ernie; pay attention.
Wanna know the US demographic that is against gay marriage the absolute MOST, even more than evangelical Christians? African-Americans – blacks – with or without religious affiliation.
Guess where they line up on the political spectrum…

It’s difficult to understand any of that gobble-DE-gook you just spouted, did you have a point to make? As for tradition, I believe tradition, traditional marriage, the Nelson & Beaver families are models that we need to return to. For the most part, the current & past few generations are so f**ked up with these newly accepted ideas of parenting, men who have their fun then abandon their progeny, households with no, or confusing male role model, or even worse, no, or confusing mother role model. If this is what you’re driving at, this society desperately needs to return to some healthy tradition, the last 20 – 30 yrs. is headed the wrong direction & our troubled society proves it.

So it is your gods law……that is over you and not me or Ross or frank it Jane it is yours. You can follow that but you have no business forcing others to also have to follow that. Our country is a mixture of religions and sects of similar ones who have different views on the bible so truly who’s god should the laws be based? Jewish, catholic, baptist, Pentecostal, west bork, Mormon, 7th day? Which one?

[[It’s difficult to understand any of that gobble-DE-gook you just spouted]]
I can imagine! You first have to understand the subject; few people do, and certainly those who are most intent on balbbering about it do not.
[[the Nelson & Beaver families are models that we need to return to]]
They were the Nelson and CLeaver famiies … and while you may have a point yourself somewhere under the screed and drivel, the reality is that no society, anywhere, at any point in hitory, ever had one model of family structure.
You also have a point that our own society seems to have gone out of its way for the past two generations in doing stupid and counter-productive things simply because it could. But as I often have to tell people: you don’t get points for being right; you get points for being PERTINENT.
Ours is a nation built for the express purpose of creating individual liberty, period. That cannot be denied or minimized.
Yes, you’re right, TOO MUCH individual liberty is every bit as self-destructive as too little … and don’t even begin to say that too little individual liberty is not self-destructive; the history books you [obviously] didn’t understand in grade school would be all the ammunition I need.
The pertinent reality is that there is no justifiable excuse to deny homosexuals their 10thAM *today* just because serial heterosexual monogamists have abused marriage and divorce laws in a self-serving manner *yesterday*. Yes, you’re right, they did. What does it have to do with gay marriage? That’s right again: nothing.
Stick with the subject.

And Ross seriously dude your critique? Thank you for passing your judgment……by the way you go to court and a justice of the peace does the duty. Kind of made your critique sad when more then once it was Justus

The major problem with your argument you sarcastic H-A, is that gay marriage is not marriage; marriage is & always will be one man & one woman, they were made by God ‘to go together’. Quit trying to make the world flat again.

Because the [state] government has their own 10AM right to address the subject
Because it is, underneath whatever ceremony and glitz you may wish to dress it up with, a legal contract which imparts legal obligations upon the state to administer and protect … and they have a legitimate need to formalize it for no other reason than to tell who is and who is not married, so they know who they are obliged to.

How do you know God is against gay marriage?
Maybe the stenographer misunderstood when he was taking notes. or simply lied about what God said because the stenographer had his own ideas and disagreed with God’s. or he simply made it up.
Or … and here’s an idea … maybe the God that gives a rat’s ass about gay marriage is not the God that sends people to hell.
Or maybe God is less concerned with gay marriage and *more* concerned with how his believers treat each other, to the point that gays who get married would merely be scolded and those who raised a religious stink about it [that most religions do not permit its adherants to raise, by the way] were the ones sentenced to hell.
Something to think about.
“Render unto Caesar that which is Caesar’s.”
“Caesar”, today, here, is the US Constitution, and requires that people be allowed to do whatever the government was not permitted to interfere with. And among the things the government was not permitted to interfere with is gay marriage.
By refusing to render unto that Caesar you are, if a Christian, being unchristian.
Just sayin …

[[marriage is & always will be one man & one woman]]
Because …?
Not because the Constitution allows it to be defined that way. Quite the opposite.
[[they were made by God ‘to go together’]]
They were made by biology to do the same. The answer is “so what”?
If GOD is upset about people breaking his rules, then he can bring his ass down here and force people to comply with those rules. He still has the capacity to smite, I suppose – it ought to be easy for him.
Biology has no rules or definitions of marriage, and all that’s required “to go together” is two willing individuals, or one willing individual who can compel another to participate.
Insofar as what biology requires, heterosexuality is in no danger from any official recognition of homosexuality; indeed, every species more evolved than a squid has a fairly uniform share of individual specimens which exhibit homosexual behavior. … yet biology has propogated all species capable of defending themselves from predators for a bazillion years.
So what it boils down to is that the “problem” with my argument is that it is based upon our POLITICAL definitions, those that define what our laws are permitted to be, and NOT upon what YOU think they should be.
The “problem” with my argument is that I refuse to accept your legal authority to be the de facto dictator of what it means to be an American and his “proper” rights and freedoms.
My being a sarcastic horse’s ass is just the icing on the cake.

You assume that all of these things in the hetero world are GOOD things. In Louisianna the woman when married loses all control of her property because they in property law follow Roman law since it was a French not English colony. Tax breaks have you actually checked into federal income taxes 2 people filing married pay more than 2 people filing single. Spousal power of attorney you had better hope your partner has the same end of life beliefs you do. I don’t trust anybody in my family to follow my religious strictures because they are all liberal protestants.

I’m not against religion of any kind. However, in the Catholic religion it is a mortal sin to be gay and unless GOD himself comes down from space, yes I do believe in the alien theory, and says otherwise I will continue to believe what is said in the bible and that is my right to do so by the bill of rights of our constitution. The constitution also says that we all have a right to disagree. I stand by my right. I will not stop you from believing what you believe and you should respect my right to do the same. I will also defend that God loves all his children as I do mine. However, when mine do wrong they are punished just as in God’s case.

I think quite highly of alot of the many things you are writing on this subject, unfortunately, no one can compete with how highly you think of yourself…What purpose is there to be superiorly educated if you just use it as a weapon?

No, Ross, the govt has NO power to infringe upon private contracts. There is also no compelling cause for govt to step on private relationships. They created a tax incentive, then said “it’s important!” That’s not justification. Also, read the 10th Amendment – rights are reserved to the PEOPLE too.

“no state shall … deny to any person within its jurisdiction the equal protection of the laws.” I would say marriage very much IS a Constitutional issue when states/The people pass laws that discriminate against a certain class of people

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In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.